Steve Epstein Reacts to the Delay in Passing Legislation on Marijuana Legalization

On concerns about driving while impaired from our own Steven Epstein

On the surface, there are at least two questions that are posed when dealing with the issue of marijuana exposure. The first relates to whether or not a person has smoked marijuana, and the second relates to whether or not that person was impaired at a specific point in time. Quantification of marijuana, delta-9-tetrahydrocannabinol (THC), and its major metabolite, 11-nor-9-carboxy-delta-9-tetrahydrocannabinol (THC-COOH), using GC/MS (gas chromatography/mass spectroscopy) is critical to understanding the extent of exposure. Impairment from smoking marijuana is short-lived, but metabolites of marijuana (THC-COOH) remain in the body and are excreted for long periods of time. The principal metabolite, tetrahydrocannabinol carboxylic acid (THC-COOH), commonly referred to as carboxy, however, is not psychoactive; consequently, it is not thought to cause behavioral impairment. That is why the collection of oral fluids quickly is vital.

Law enforcement faces the problem that the traditional battery of standardized field sobriety tests have not been validated for marijuana. (1)

The police can and do have the capabilities to detect drivers who have used marijuana in another way in the field using drug recognition and detection devices such as the Drager Drug Test 5000 Analyzer. The device is easy to use in the field and weighs less than 10 pounds. Police officers use an oral fluid collector by swabbing the inside of a driver's cheek or tongue. The analysis of the oral sample is then based on an optical evaluation of the immunochemical test strips and is similar in nature to a pregnancy test. In less than 10 minutes of reaction time, the test strips will reveal whether a reaction has occurred indicating the presence of a drug such as marijuana. While the results may be useful for field detection as screening tools, they also can serve the dual role of allowing the sample to be preserved and sent to the lab for further testing using more reliable methods such as gas chromatography.

Revenue from marijuana sales should be set aside for use by law enforcement to give them tools such as the Drager 5000 and is yet another example of how the legalization of marijuana can make our roads safer.

With regard to establishing a criminal-based system of prosecution, I recommend New York adopt a 2-tiered system of drugged driving enforcement (currently used in some European countries and Australia) apply to marijuana offenses. A low blood THC per se concentration of 1–5g/L is enforced with limited penalties that do not include prosecution in criminal court, fines, and driver’s license points. Proof of impairment standard incurs much more serious penalties, including loss of driver’s license, fines, and imprisonment.

Please click here to view Attorney Epstein's feature in the Buffalo News article. 

(1) Reference: A. Porath-Waller & D. Beirness, An Examination of the Validity of the Standardized Field Sobriety Test in Detecting Drug Impairment Using Data from the Drug Evaluation and Classification Program, Canadian Centre on Substance Abuse (2013); M. O’Keefe, Drugs Driving—Standardized Field Sobriety Tests: A Survey of Police Surgions in Strathclyde, 8 J.OF CLINICAL FORENSIC MED. 57 (2001); K. Papafotiou, J.D. Carter & C. Stough, The Relationship Between Performance on the StandaBErdised Field Sobriety Tests, Driving Performance and the Level of Δ9-Tetrahydrocannabinol (THC) in Blood, 155 FORENSIC SCIENCE INT’L 172 (2005); K. Papafotiou, J.D. Carter &C. Stough, An Evaluation of the Sensitivity of the Standardized Field Sobriety Tests (SFSTs) to Detect Impairment Due to Marijuana Intoxication, 180 PSYCHOPHARMACOLOGY 107 (2005); Luke A. Downey et. al., Detecting Impairment Associated with Cannabis with and without Alcohol on the Standardized Field Sobriety Tests, PSYCHOPHARMACOLOGY, DOI 10.1007/s00213-012-2787-9, Published Online July 5, 2012; W.M. Bosker, A Placebo-Controlled Study to Assess Standardized Field Sobriety Tests Performed During Alcohol and Cannabis Intoxication in Heavy Cannabis Users and Accuracy of Point of Collection Testing Devices for Detecting THC in Oral Fluid, 223 PSYCHOPHARMACOLOGY 439 (2012).